Content control: How is intellectual property protected?
Options:[Trade secrets / Patents / Copyrights / Trademarks / Other IP] are protected by [Limiting it to very specific identified items / Marking it properly / Segregating it from other content / Controlling who has access to it / Limiting disclosure to identified parties / Having relevant contracts in place with all accessing parties / Not disclosing it / Filing timely legal papers / Actively applying it / Actively protecting it / Explicitly inventorying it / Tracking actual access / Tracking and following jurisdictional requirements / Practices commensurate with its business utility]
[Trade secrets] are protected by [Limiting it to very specific identified items / Marking it properly / Segregating it from other content / Controlling who has access to it / Limiting disclosure to identified parties / Having relevant contracts in place with all accessing parties / Not disclosing it / Actively protecting it / Explicitly inventorying it / Tracking actual access / Tracking and following jurisdictional requirements]
While state-by-state and country-by-country laws vary, trade secrets are protected only by the holder preventing unauthorized parties from gaining access to it. In order to prove that trade secrets have been violated, and thus be compensated for their release, it is generally necessary to prove that an authorized party improperly disclosed those secrets, that they were otherwise properly protected, and that they were in fact legitimate trade secrets. Generally, this means:
- They must be secret. That is, only a small number of known and authorized individuals may know them. If someone else knows them independently of the moment they became trade secrets and identified trade secret communication after that point, they are not secret. For example, a customer list is almost certainly not a trade secret, because the customers know who they are, and the aggregated set of non-trade secrets is not a trade secret.
- They must be valuable. The value must be very substantial for each piece of trade secret information. For example, I know what the things in my safe deposit box are, and nobody else does, but since this has little real value, it is not a trade secret, even if it might be a secret.
- They must not be obvious or generally known. If someone independently stumbles across the same thing and reveals it, if it was published somewhere at some time, or if it is patented, it cannot be a trade secret.
For legal protection to apply to trade secrets, that is, in order to win a law suit if someone steals them, there has to be effective protection in place. Generally, this includes things like:
- Separate trade secrets from non-trade secrets: Don't keep them in the same physical location, not on the same computer, disk, directory, file cabinet drawer, etc. In the case of computer systems which can maintain adequate separation, you might place them in segregated areas, encrypted with different keys, etc.
- Label documents, items, software, files, etc. containing trade secrets: Typical labels indicate "TRADE SECRET" and this marking should be present on every page or screen displaying the document containing the information, as well as on the outer cover, front and back. "This document contains confidential and proprietary unpublished information of [entity name]. Do not copy or circulate.
- Execute nondisclosure agreements: Anyone with access must sign such an agreement BEFORE access is granted and the entity protecting the secrets better have properly signed and countersigned agreements in hand.
- Use employee manuals and awareness programs to emphasize trade secret protection: Everybody with potential to access, intentionally or otherwise, should have adequate notice and awareness. This typically includes initial briefings, written notices, exit interviews, etc.
- Use physical security controls: Unauthorized parties should not be allowed to be in physical proximity to trade secrets, and physical barriers to entry are an important part of this.
- Don't disclose in any form: Disclosure in any form may constitute loss of trade secret value. It doesn't matter whether it is spoken, written, electronic, sign language, or anything else. Disclosure is disclosure.
- Log all accesses: Every access to the physical area or specific information should produce a log identifying who accessed what trade secret and when. These should be timely, reliable, and unalterable whenever possible.
- Some other typical steps: Each copy should be identified and numbered/marked with each access associated with such a copy tracked and limited to the party authorized to that copy. Controls over the entire lifecycle from initial creation to final disposition should be meticulously maintained. Inventory should be kept and accurately maintained. Generally, the protection program as a whole should be at the Defined level or higher.
- Conduct periodic reviews: A periodic audit process should verify that all measures to protect trade secrets are in place and operating properly.
[Patents] are protected by [Marking it properly / Not disclosing it prior to filing / Filing timely legal papers / Tracking and following jurisdictional requirements]
Unlike trade secrets, the protection of which is all in the hands of the holder, patents, once files, can generally be disclosed without loss of rights. Confidentiality only applied prior to filing, and then there are different specific limitations in different time frames and jurisdictions.
- Marking Pat. Pend. for pending patents, and Pat. along with the patent numbers protects patented items in terms of adequate notice to others. Filing timely legal documents is necessary, and there is the "race to the patent office" effect in that the first to file generally wins the patent.
[Copyrights] are protected by [Marking it properly / Explicitly inventorying it] Generally, anything reduced to tangible form is copyrighted de-facto. Additional protection may be attained by sending a copy to the copyright office, having adequate proof of the date of the creation of the document, etc. But copyright is a relatively weak protection, protecting the specifics of the material and not the ideas, methods, processes, or concepts.
[Trademarks] are protected by [Limiting it to very specific identified items / Marking it properly / Actively applying it / Actively protecting it / Explicitly inventorying it] Trademarks and similar markings are typically in the form of shapes, colors, markings, etc. that are unique at the time of inception and protected through their lifecycle by aggressively pursuing those who use those markings in the legal system.
[Other IP] are protected by [Practices commensurate with its business utility] In general, that's what the standard of practice is about.